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New Rules for Employers of F-1 STEM OPT Graduates

March 11, 2016

The U.S. Department of Homeland Security (DHS) announced the release of a new rule governing the STEM Optional Practical Training (OPT) program. Under the rule, qualifying F-1 graduates of Science, Technology, Engineering and Mathematics (STEM) programs at accredited U.S. universities who have been granted 12 months of OPT may be eligible to apply for a 24-month extension of his or her OPT, known as a STEM OPT extension. This rule is effective May 10, 2016.

The rule extends the STEM OPT period from 17 to 24 months. It allows eligible F-1 graduates to receive a 24-month extension at each educational level, with a lifetime limit of two STEM OPT periods. The rule expands eligibility for the STEM OPT extension by:

Expanding the list of eligible STEM degree fields

Increasing to 150 days the aggregate OPT unemployment period permitted

Providing that if an F-1 graduate completed a qualifying STEM degree program within the past 10 years, he or she may be eligible to obtain a STEM OPT extension

The rule imposes new requirements on U.S. employers of STEM OPT graduates. STEM OPT employers are now required to (i) assist with the development of a formal training plan and mentoring program for the F-1 graduate and (ii) attest that the graduate’s hours, duties and compensation are the same as similarly situated U.S. workers. STEM OPT graduates must also report training program changes to their designated school official.

Obligations imposed on employers under the rule include:

Providing sufficient resources and trained personnel to mentor and train the foreign student as prescribed in the formal training and mentoring plan

Ensuring that the employment opportunity will assist the foreign student in attaining his or her training objectives

Evaluating the foreign student on an annual basis by signing an evaluation

Complying with new site visit and reporting requirements, under which DHS may conduct announced or unannounced worksite visits for STEM OPT graduates